So does thisrelying on court opposition to longstanding workplace protections of gayscount as supporting Judicial Activism?

Official Says Law Doesn’t Cover Gays Counsel Cites Lack of Authority to Enforce Discrimination Ban By Christopher Lee Washington Post Staff Writer Wednesday, May 25, 2005; Page A25

Special counsel Scott J. Bloch told a Senate panel yesterday that he lacks the legal authority to enforce the Bush administration’s ban on discrimination against federal employees based on sexual orientation.

If a federal manager fires, reassigns or takes some other action against an employee simply because that employee is gay, there is nothing in federal law that would permit the Office of Special Counsel to protect the worker, Bloch testified before the Senate Homeland Security and Government Affairs subcommittee on oversight of government management, the federal workforce and the District of Columbia.

“We are limited by our enforcement statutes as Congress gives them,” Bloch said, responding to a question from Sen. Carl M. Levin (D-Mich.). “The courts have specifically rejected sexual orientation as a class protection.”